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Roy Simon
New York
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The ABA has chosen well in naming Andy and Renee to key positions on the new Commission on the Future of Legal Services. Congratulations, fellow LEF bloggers! In my mind, the most disappointing episode in the life of the ABA Commission on Ethics 20/20 was the refusal of the ABA House of Delegates to allow the 20/20 Commission to fully explore alternative business structures. I hope the House of Delegates will not similarly constrain the new Future Commission, and that it will have the freedom at least to debate the kinds of striking proposals contained in the CBA report. (I clicked on the link to Jordan Furlong's summary and analysis, and it is well worth reading.)
Florida has been sued repeatedly for its overly-restrictive advertising rules (Ibanez, Edenfield v. Fane, Harrell, Went-for-It). In New York, the issues addressed in the Florida lawsuit are covered in Rules 7.1(d)-(e) and in Comments [11] and [12] to Rule 7.1, which provide as follows: (d) An advertisement that complies with paragraph (e) may contain the following: (1) statements that are reasonably likely to create an expectation about results the lawyer can achieve; (2) statements that compare the lawyer’s services with the services of other lawyers; (3) testimonials or endorsements of clients, where not prohibited by paragraph (c)(1), and of former clients; or (4) statements describing or characterizing the quality of the lawyer’s or law firm’s services. (e) It is permissible to provide the information set forth in paragraph (d) provided: (1) its dissemination does not violate paragraph (a); (2) it can be factually supported by the lawyer or law firm as of the date on which the advertisement is published or disseminated; (3) it is accompanied by the following disclaimer: ‘‘Prior results do not guarantee a similar outcome’’; and (4) in the case of a testimonial or endorsement from a client with respect to a matter still pending, the client gives informed consent confirmed in writing. Here are Comments [11] and [12]: Statements Creating Expectations, Characterizations of Quality, and Comparisons [11] Lawyer advertising may include statements that are reasonably likely to create an expectation about results the lawyer can achieve, statements that compare the lawyer’s services with the services of other lawyers, or statements describing or characterizing the quality of the lawyer’s or law firm’s services, only if they can be factually supported by the lawyer or law firm as of the date on which the advertisement is published or disseminated and are accompanied by the following disclaimer: ‘‘Prior results do not guarantee a similar outcome.’’ Accordingly, if true and accompanied by the disclaimer, a lawyer or law firm could advertise ‘‘Our firm won 10 jury verdicts over $1,000,000 in the last five years,’’ ‘‘We have more Patent Lawyers than any other firm in X County,’’ or ‘‘I have been practicing in the area of divorce law for more than 10 years.’’ Even true factual statements may be misleading if presented out of the context of additional information needed to properly understand and evaluate the statements. For example, a truthful statement by a lawyer that the lawyer’s average jury verdict for a given year was $100,000 may be misleading if that average was based on a large number of very small verdicts and one $10,000,000 verdict. Likewise, advertising that truthfully recites judgment amounts would be misleading if the lawyer failed to disclose that the judgments described were overturned on appeal or were obtained by default. [12] Descriptions of characteristics of the lawyer or law firm that are not comparative and do not involve results obtained are permissible even though they cannot be factually supported. Such statements are understood to be general descriptions and not claims about quality, and would not be likely to mislead potential clients. Accordingly, a law firm could advertise that it is ‘‘Hard Working,’’ ‘‘Dedicated,’’ or ‘‘Compassionate’’ without the necessity to provide factual support for such subjective claims. On the other hand, descriptions of characteristics of the law firm that compare its services with those of other law firms and that are not susceptible of being factually supported could be misleading to potential clients. Accordingly, a lawyer may not advertise that the lawyer is the ‘‘Best,’’ ‘‘Most Experienced,’’ or ‘‘Hardest Working.’’ Similarly, some claims that involve results obtained are not susceptible of being factually supported and could be misleading to potential clients. Accordingly, a law firm may not advertise that it will obtain ‘‘Big $$$,’’ ‘‘Most Money,’’ or ‘‘We Win Big.’’
I would focus more on the ratio (i.e., percentage) rather than the absolute dollar amount. The story also quotes the Trustee as saying that he and his team have "successfully recovered, or reached agreements to recover, more than $9.35 billion as of July 31, 2013—more than 53% of the $17.5 billion of principal lost in the Ponzi scheme by those who filed claims ...." In other words, fees so far are under 10% of the amount recovered. Does anyone know if that's in the range of an acceptable ratio of fees to recovery? (But of course those are hourly fees, so the Trustee and his firm don't bear the risk of non-recovery, right?)
Joseph McLaughlin, a partner at Simpson Thacher, has a column in the Dec. 12th NYLJ entitled "Post-Merger Control of Attorney-Client Privilege," and it is about the Great Hill Equity case. Might be behind a pay wall, but here's the conclusion: "A contractual provision excluding from the assets transferred to the buyer specified categories of privileged communications (such as those relating to the negotiation of the transaction) is easy to draft, and lends the clarity and predictability essential to encourage full and frank communication between attorneys and their clients. Relatedly, if seller wants to preserve the ability to retain its existing counsel and the company's now-former counsel in the event of a post-closing dispute between buyer and seller, the parties may address potential former client conflicts through negotiated waivers in the acquisition agreement."
Roy Simon is now following Milan Markovic
Dec 7, 2013
Whether a conflicts treaty is necessary or not, wouldn't it save enormous transaction costs to have a uniform set of rules? Even though Rule 1.7 already permits sophisticated clients to waive every conflict for which a lawyer might reasonably be expected to ask, don't the parties now spend time negotiating each waiver (and advance waiver) case by case? Of course, in some situations the parties might want to negotiate to alter the uniform rules -- and I think every advance waiver would still have to be negotiated unless the Uniform Sophisticated Client Rules ("USCR") approved blanket waivers. I do worry that big companies might say to opposing counsel for an unsophisticated client, "Let's agree that the USCR will govern our case," thus imposing broad conflict waivers on an unsophisticated client. Would such an agreement to follow the USCR be valid?
Toggle Commented May 2, 2010 on A Treaty for Conflicts at Legal Ethics Forum
I think the proper focus should be ABA Model Rule 1.14, not Rule 1.6, because Rule 1.14(b) and (c) provide an exception to confidentiality when the client "has diminished capacity" and "is at risk of substantial physical ... harm" -- but Alice is right that we must presume "diminished capacity" to trigger that exception. With assisted suicide, it is much harder to argue diminished capacity -- if a spouse or physician is assisting, then arguably the client has augmented capacity (two heads are better than one), not diminished capacity. But with individual suicide, society seems to agree that suicidal intent is a mental problem -- a friend of mine was once forcibly restrained in a hospital mental ward for expressing some suicidal thoughts, and I don't think that is an isolated case. As for bar association efforts to address the problelm, in 1978, after New York had decriminalized suicide, the NY State Bar ethics committee issued the following opinion (which I provide in full to save everyone the trouble of chasing down links): (Cite as: 1978 WL 14149 (N.Y.St.Bar.Assn.Comm.Prof.Eth.)) New York State Bar Association Committee on Professional Ethics Opinion Number 486 June 19, 1978 TOPIC: CONFIDENCES OF CLIENT; SUICIDE, DISCLOSURE OF INTENT TO COMMIT DIGEST: Guidelines for lawyer whose client discloses intent to commit suicide. Lawyer may take appropriate action to prevent suicide, including disclosure of client's intentions. CODE: Canon 4 EC 4-2, 7-11, 7-12; DR 4-101(A) and (C)(3) QUESTION May a lawyer disclose his client's expressed intention to commit suicide? OPINION Neither the Code, the former Canons of Professional Ethics, nor any ethics committee opinion of which we are aware, directly address the issue of a lawyer's obligations when told by a client that the client is contemplating suicide. The issue is a difficult one. The lawyer's obligations will depend in part upon the circumstances of each case, and upon the experience, wisdom and skill at human relations of the lawyer to whom the disclosure is made. There is also a need to balance the law's longstanding policies concerning the protection of human life against customary professional standards involving the preservation of client confidences and secrets. Whether customary professional standards of secrecy apply vel non will initially be determined by the circumstances under which the lawyer learns of his client's intention to commit suicide. If the disclosure is unrelated to any legal advice which the client has sought, the obligations of secrecy addressed by Canon 4 have no application. Under such circumstances, we have no difficulty in finding the lawyer free to take whatever steps he deems appropriate to prevent his client from attempting suicide, including disclosure of his client's intentions. The lawyer's advice on a matter within his professional competence and duties has not been sought. His status is no different from that of any friend or other confidant. As such, the Code does not impose upon him any greater obligation of silence than that which would apply to nonlawyers under similar circumstances. Indeed, to the extent that the dictates of common sense and decency would impel non-lawyers to speak out and divulge such information, the lawyer similarly should not withhold such information from those who may be more competent than he to prevent the threatened act. [FN1] Where disclosure of the client's intention to commit suicide occurs in the course of the lawyer's representation, however, the provisions of Canon 4 clearly apply. The information is confidential or at least "secret" within the meaning of DR 4-101(A) and, accordingly, may not be disclosed unless such disclosure can be justified as an exception to the general rule against revealing the confidences and secrets of a client. In this latter connection, we note that EC 4-2 and DR 4-101(C)(3) recognize certain exceptions to the general rule thus permitting a lawyer to divulge "'[t]he intention of [a] client to commit a crime and the information necessary to prevent the crime". This exception has its origin in a judicially created and universally accepted limitation on the attorney-client privilege. See, 8 Wigmore, Evidence, §§ 2298-2299 (McNaughton Rev. 1961). The exception would, of course, be applicable in all states which still treat attempted suicide as criminal. And, if attempted suicide were still a crime under the laws of this State, we should have no difficulty in finding that the Code permits a lawyer to divulge his client's expressed intention to take his own life without the need for further exposition or comment on our part. See, N.Y. State 405 (1975). The laws of this State will not, however, permit so facile a solution for attempted suicide is no longer a crime in New York. *2 Nevertheless, there are certain principles of conduct which a lawyer is obligated to uphold by the very nature of his office and its relationship to society. Cf., N.Y. State 479 (1978) with N.Y. State 466 (1977). These principles of conduct are the threads of our social fabric. None is more basic than society's concern for the preservation of human life. A lawyer cannot be unmindful of that concern. The decriminalization of attempted suicide in this State was not intended to effect any basic change in the underlying common law and statutory policies of deep concern for the preservation of human life and the prevention of suicide. [FN2] Rather, attempted suicide was decriminalized in this State, as elsewhere, in order to promote the very same ends which the penal law had theretofore sought to accomplish. See, Schulman, "Suicide and Suicide Prevention: A Legal Analysis", 54 A.B.A.J. 855 at 856-860 (1968). We find this fact to be determinative; and, it compels us to treat an announced intention to commit suicide in a manner similar to that which would obtain in the case of proposed criminal conduct under DR 4-101(C)(3). Having noted society's general abhorence of suicide, it may yet be observed that such feelings will on occasion admit to certain limited exceptions. Thus, consistent with the permissive character of the exception created by DR 4- 101(C)(3), we also note that there may be circumstances when a lawyer can properly elect to remain silent. For example, a very much different situation may be presented by a client of apparently sound mind who discloses that he is contemplating suicide to avoid a lengthy, painful and expensive terminal illness. In such circumstances, the issues are not unlike those involved where a person of sound mind elects to refuse lifesaving medical treatment. While it would be illegal to aid a client or any other person to attempt suicide (Revised Penal Law § 120.30), the circumstances might well be such that a lawyer could properly decide that no unauthorized disclosure would be appropriate. In sum, the lawyer's action, when a client has disclosed an intent to commit suicide, must depend upon the particular circumstances present, taking into account policies respecting the protection of human life and the prevention of suicide. Where the lawyer has reason to believe that the client's disclosure may be a cry for attention or help, the lawyer should make a special effort to give the client sympathetic counseling. Where possible, the lawyer should encourage and assist the client to seek needed help. The lawyer may thus, and generally should, take appropriate action to keep the client from committing suicide and, for this purpose, may reveal the client's suicidal intent to others. Disclosure of client confidences respecting contemplated suicide obtained in the course of the lawyer's representation should not be made, however, unless the lawyer reasonably believes that such disclosure is necessary to prevent the client from taking his life. *3 For the reasons stated, and subject to the qualifications hereinabove set forth, the question posed is answered in the affirmative. FN1 It is widely recognized that suicidal intent is usually the product of a temporary mental condition. A disclosure of such intent, either by words or action, is often a cry for attention or help from a person in emotional extremis. Frequently, such disclosures are made to trusted individuals - a priest, a physician, a lawyer - in the hope, perhaps an unconscious one, that the individual approached cares enough to listen to the distressed person's problems and provide understanding assurance that the problems are not of such magnitude as to justify suicide. Sometimes such disclosures are made even to total strangers for the same purpose. Under such circumstances, a lawyer's obligation should be the same as that of any sensitive and understanding individual. The lawyer should show appropriate concern, encourage the client to seek help, and if necessary disclose the situation to responsible family members, a physician or some other appropriate individual or agency. This obligation is especially strong where it appears that the client may not be mentally capable of making rational decisions. See, EC 7-11 and 7-12 (which recognize that a lawyer may well have an obligation to protect a client, even from his own irrational decisions). Suicide can often be averted by sensitive counseling, just as it may be precipitated by callous counseling or by a refusal by those to whom the disclosure is made to become involved in the distressed person's problems. FN2 At early common law, suicide and attempted suicide were crimes. Some states enacted statutes attaching penal sanctions to attempted suicide. Others have decriminalized suicide and attempted suicide, but make it a crime to aid another to attempt suicide. See, Clark & Marshall, Crimes (7th ed. 1967), § 10.03. As expressed by Woodside, J., in Commonwealth v. Root, 191 Pa. Super. 238, 244, 156 A. 2d 895, 900 (1959): "The policy of the law is to protect human life, even the life of a person who wishes to destroy his own." Among offenses made criminal by the New York Penal Code of 1881 were attempted suicide (§§ 174, 178) and aiding, advising, encouraging or assisting another to commit or attempt a suicide (§§ 175, 176). Each of these offenses was classified as a felony. Section 173 of the 1881 Code also contained a specific statutory policy declaration that "suicide is deemed a grave public wrong." These five sections were carried forward without change as §§ 2301-2305 of the Penal Law of 1909. The sections making attempted suicide a crime were repealed by N.Y. Laws, Ch. 414 (1919). The policy statement and the aiding and abetting provisions remained unchanged until the present Revised Penal Law was enacted in 1965. Section 120.30 of the 1965 Law classified as a class E felony "'intentionally caus[ing] or aid[ing] another person to attempt suicide." Section 120.35 specifies aggravated circumstances under which this offense may also constitute an attempt to commit murder. The earlier declaratory provision (§ 173, 1881 Penal Code; § 2301, 1909 Penal Law) was eliminated and in effect replaced by § 35.10(4), which provides: "A person acting under a reasonable belief that another person is about to commit suicide or to inflict serious physical injury upon himself may use physical force upon such person to the extent that he reasonably believes it necessary to thwart such result." END OF DOCUMENT